Ontario Court of Appeal finds cycling accident occurred on highway’s travelled portion

In a case arising from a cycling accident, the Ontario Court of Appeal determined that s. 44(8) of Ontario’s Municipal Act, 2001, did not apply to bar the claim because the accident occurred on a highway’s travelled portion. 

In Bello v. Hamilton (City), 2025 ONCA 758, the appellant was in a cyclists’ group. One day in 2019, the group planned to ride over two mixed-use recreational trails: the Red Hill Valley Trail and the Chippewa Trail. 

The group completed the first trail and headed for the second via a paved path parallel to Stone Church Road East in Hamilton. They then encountered a choice between a paved shoulder of Stone Church Road, designated as a bike lane, or a dirt path just beyond the road’s guardrail. 

The group opted for the dirt path to avoid motor vehicle traffic. They passed through a culvert with eroded ground, which created a big hole concealed by tall grass. The lead cyclist noticed the hole at the last moment and swerved to the right to avoid it. 

Behind the lead cyclist, the appellant swerved to the left, fell, and broke his neck. He had a catastrophic spinal cord injury resulting in complete tetraplegia, which required him to use a wheelchair and rely on care for the remainder of his life. 

The appellant commenced an action seeking general damages of $20 million and special damages of $2 million from the City of Hamilton. He alleged negligence and alternatively asserted public nuisance for failure to maintain the road. 

The city’s summary judgment motion sought to dismiss the action under s. 44(8) of Ontario’s Municipal Act, 2001. 

On Oct. 4, 2024, Justice Elizabeth C. Sheard of the Ontario Superior Court of Justice granted the city’s motion and dismissed the appellant’s action upon finding that s. 44(8) barred the claim because the accident occurred on the highway’s untravelled portion. 

The appellant asked the appeal court to make the factual findings on the existing record needed to determine the motion. Alternatively, he wanted to remit the motion for a new hearing on an expanded record, which would allow him to add evidence clarifying whether cyclists’ use of the dirt path came after the establishment of bicycle lanes. 

Action not barred

The Court of Appeal for Ontario allowed the appeal and restored the action to the trial list. The appeal court found error in the motion judge’s departure from the factual standard in MacDonald v. LeFebvre et al., 1962 CanLII 111 (ON CA), [1962] O.R. 495 (C.A.), 32 D.L.R. (2d) 696. 

The appeal court acknowledged that the appellant’s accident happened in an area that the municipality did not intend for use through any mode of ordinary travel mode. 

The appeal court noted that the judge asked whether the municipality could reasonably foresee that cyclists would use the location for ordinary travel, a question which might be relevant in resolving what the municipality intended and whether it was negligent. 

However, the appeal court held that the judge tackled the wrong question, used the incorrect legal test for s. 44(8) of the Municipal Act, and failed to resolve the required factual and legal question of whether the public commonly and habitually used that portion of the highway for travel, which would exclude that place from the untravelled portion. 

The appeal court saw no unfairness to the municipality, which could manage its risk of allegations of negligence in the event of misadventure by properly maintaining the path or using signs or barriers to prevent its use.

Regarding the relief, the appeal court deemed it unnecessary to remit the motion for a rehearing. The appeal court found the existing evidentiary record sufficient for the motion’s determination. Specifically, the appeal court determined that: 

• There was a path 
• Pedestrians and cyclists commonly and regularly used it for travel at the time of the accident 
• This use persisted for an undetermined but considerable period of time 

Finally, the appeal court stated that the judge’s characterization of the cyclists’ choice of the dirt path as a pursuit of “convenience or pleasure” and “an unusual course that invites danger” contradicted the evidence of the appellant and three other cyclists with him that day.